Judges approve Republicans' congressional map for Texas

R.G. RATCLIFFE, Copyright 2003 Houston Chronicle Austin Bureau

Published 6:30 am, Tuesday, January 6, 2004

AUSTIN -- A three-judge federal court today upheld a Republican congressional redistricting plan against claims that it harms minority voting rights, but the court sharply criticized the process of adopting the map as a threat to the system of fair elections.

"We decide only the legality of (the plan), not its wisdom," the court's opinion reads. "Whether the Texas Legislature has acted in the best interest of Texas is a judgment that belongs to the people who elected those officials whose act is challenged in this case."

Democrats criticized the decision and promised an immediate appeal to the U.S. Supreme Court. Five of the court's nine justices would have to agree to hear the appeal to halt the plan's use in the 2004 elections.

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"By judicial fiat, a three-judge federal panel has effectively repealed the Voting Rights Act and turned back the clock on nearly 40 years of progress for minority voters," said U.S. Rep. Martin Frost, D-Dallas.

The Legislature's new congressional map likely will eliminate the 17-15 Democratic advantage in the state's congressional delegation and replace it with a 22-10 Republican majority after this year's elections.

All three judges rejected claims from Democrats and minority groups that the map dilutes minority voting strength in most districts statewide.

But District Judge John Ward, in a dissent, said the redrawing of District 23 -- now represented by U.S. Rep. Henry Bonilla, R-San Antonio -- violated the voting rights of Hispanics.

The Legislature split Laredo into two districts to make Bonilla's district more Republican. The court majority accepted lawmakers contention that any harm to Laredo Hispanics was offset by the creation of a new 25th District in South Texas.

"The majority errs when it holds that the state may permissibly 'trade off' the rights of minority voters in former District 23 for those in new District 25, a district created to assist the state with its (U.S. Justice Department) pre-clearance efforts," Ward wrote in his dissent.

Ward said he would have enjoined the map, instructed the Legislature on how to fix it and ordered this year's elections to be held under the map that was used in 2002.

The court's Republican majority rejected all the claims from Democrats and minority groups that the map was meant to harm the voting strength of blacks and Hispanics.

"We are compelled to conclude that this plan was a political product from start to finish," said the opinion by 5th Circuit Court of Appeals Judge Patrick Higginbotham of Dallas and District Judge Lee Rosenthal of Houston. "The myriad decisions made during its creation were made in spite of, and not because of, its effects upon blacks and Latinos."

They said the facts do not support Democratic contentions that the plan intentionally discriminated against blacks in District 24, now held by Frost. Democrats say Frost, an Anglo, is elected with the help of black voters in general elections.

"That African Americans in Texas vote overwhelmingly for Democratic candidates and that various political compromises were reached to arrive at the current district lines belie the assertion that Texas intentionally discriminated against African American voters," Higginbotham and Rosenthal said.

All the judges expressed alarm that computer-assisted redistricting between the decennial censuses was used to create a partisan shift in power.

Higginbotham and Rosenthal urged Congress to adopt a law to forbid redistricting more than once a decade.

Higginbotham and Rosenthal also called on the U.S. Supreme Court in a currently pending case to give lower courts greater guidance in how to deal with "excessive partisan line drawing."

"Perhaps the court will draw on its experience in developing federal common law in the antitrust area, which draws a fine line between competitive effect and injury to competition," they said.

They noted the power of the computer allowed Democrats in 1991 to draw a partisan gerrymander that thwarted Republicans much as this map hinders Democrats. They said the computer-drawn maps create the "potential for abuse."

"We know it is rough and tumble politics, and we are ever mindful that the judiciary must call the fouls without participating in the game," they said. "We must nonetheless express concern that in the age of technology this is a very different game."

But they also said Texas Democrats have the power to reverse the current partisan gerrymander by re-taking statewide offices at the ballot box. And they said Democrats stretched minority voter protections offered by the federal Voting Rights Act to attack the Republican plan.

"If the judiciary must rein in partisan gerrymanders, limitations that focus upon the time and circumstances of partisan line-drawing and less upon the `some but not too much' genre of strictures offer the best of an ugly array of choices," Higginbotham and Rosenthal said.

Ward, in his dissent, said it is the nature of partisan gerrymander, not its timing, that causes problems.

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"Modern technology effectively allows a state to dictate electoral outcomes and to favor or disfavor a class of candidates by enabling extreme partisan gerrymandering," Ward said.